In 1947, 16 German judges were tried and convicted for crimes against humanity, that is, enforcing
Nazi racial purity laws supporting the Holocaust. In 2010, three Iowa judges were attacked and removed for striking down a
same-sex marriage ban, that is, what some supporters call a marriage purity law. All these judges were guilty of doing their
job. So what’s the difference? Well, the Nazi judges were following what they felt was required by the German government,
and to some extent the German people, regardless of the consequences. But the Iowa judges were guilty of doing what they felt
was required by the law, regardless of the consequences.

Afterwards, Iowa law professor Todd Pettys told the Wall Street Journal, “The notion of throwing someone out on the
basis of one ruling is entirely in tension with all other considerations that went into coming up with Iowa’s policy
[of keeping electoral politics out of the judiciary] . . . Given this, you’d think that the standard for rejecting a
judge would be pretty extreme, like misconduct or a pattern of blatantly disregarding the rule of law. . . There’s just
no misbehavior [here] of any kind.” So has electoral politics seeped into the American judiciary?

In 1849, a South Bend state trial judge named Elisha Egbert freed former slave David Powell and his family who were tracked
down by their Kentucky “owners.” He interpreted a 1793 law to allow only damages for runaway slaves, not possession.
If Judge Egbert was facing slave-owning voters, would he have been thrown out? A year later, Congress passed the Federal Fugitive
Slave Act, and Northern judges everywhere followed the law to return former slaves to former masters. What would Judge Egbert
have done under the new law? Presumably, he would have done his job – interpreted the law and followed it. If he was
still in office.

Unfortunately for all Americans, a new Brennan Center for Justice report entitled “The New Politics of Judicial Elections”
identifies a “grave and growing” challenge to impartial consideration of judges and the emergence of several “super
spenders,” like the U.S. Chamber of Commerce. But is this new? Under accusatory euphemisms like “activist”
or “legislating,” there is a discouraging record of judicial challenges based more upon a partisan single interest
scorecard than the rule of law:

In 1996, Tennessee Justice Penny White was rejected for just concurring in a unanimous decision reversing a death penalty
conviction – three California justices were earlier removed because of death penalty opposition.

In Colorado, Chief Justice Mary Mullarky retired this year rather than face an organization called “Clear The Bench.”
(taxes, redistricting, eminent domain)

In Illinois, Chief Justice Thomas Kilbride vigorously fought and survived opposition based not upon any ruling, but seeking
a more partisan court for upcoming political redistricting. Even local cynics conceded any new judge might still be independent.
(“It’s conceivable that [the court] would do what it ought to do.” – Illinois official Dawn Clark
Netsch)

“The business of the law is to make sense of the confusion of what we call human life, “said poet Archibald MacLeish,
himself a lawyer, “to reduce it to order but at the same time to give it possibility, scope, even dignity.” This
could be a standard by which to judge a judge – not whether we agree on a single case, or to bully an expedient political
point. Bob Vander Plaats, the Iowa opposition leader, declared, “It’s ‘we the people,’ not ‘we
the courts.’” But according to the Founding Fathers, he is wrong. The plain words of the Constitution give power
to the people – and deliberately balance that power with the rule of law. So it is more accurate to say, “We all
the people (protected by the law all the time),” not “we the (majority of) people (only in one election on one
issue).”

What can be done? Nothing. In a democracy, no law should stop these “super spenders” and single-issue thinkers.
But judges who forfeit their independence for short-term considerations may face long-term consequences. Just ask the German
judges. Overall, there has been no diminishing effect on the courage and dedication of our judges to do what is right rather
than do what polls show. But there will always be good judges who will be removed, who will get thrown out for the wrong reason,
or no reason. Regardless, the Republic stays strong because judges stay strong. Just ask the Powell family.•
__________

Judge David J. Dreyer has been a judge for the Marion Superior Court since 1997. He is a graduate of the University of
Notre Dame and Notre Dame Law School. He is a former board member of the Indiana Judges Association. The opinions expressed
in this column are the author’s

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